The Power of Perspectives

Interprovincial beer case heads to the SCC

A case that will decide the fate of Canadian liquor laws, and perhaps inter-provincial trade itself, is heading to the Supreme Court.

R. v. Comeau, which found that a ticket issued against Gerard Comeau ran afoul of the Constitution Act, 1867, was decided at the Provincial Court Of New Brunswick in 2016.

Since then, the province has tried to appeal to both New Brunswick Court of Appeal and the Court of Queen’s Bench, to little avail. Their hail mary pass, which came with the enthusiastic support of Comeau himself, was to file for leave to the Supreme Court.

The top court granted leave yesterday.

Setting up the upcoming decision, Gardiner Roberts’ Ian Blue wrote: “Whether or not to grant leave to appeal the Comeau decision directly to the SCC is a highly political question.”

Blue wrote that it would be “easy” for the top court to simply deny the appeal “but that would be leaving the Comeau decision and its formidable reasoning in the hands of litigation lawyers and judges with libertarian tendencies.”

Blue suspected the court would grant leave. What’s more, the decision saddles the government of New Brunswick with full costs.

The leave to appeal opens the door for a potentially monumental decision on how the provinces regulate the inter-provincial trade — which, as anyone who has ever tried to buy Nova Scotia wine in Ontario would know — is restrictive, at best.

But it also opens the door for the Supreme Court to offer guidance on what exactly the free flow of goods across provinces really looks like.

As CBA National wrote last January, the difference between a truly free trade of goods within Canada, across provincial borders; and the status quo of restrictive regulations that aim to halt the flow of goods where one province ends and the next begins, it rests on a century-old section of the Constitution Act.

The pertinent language: “All articles of the growth, produce, or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces.”

Is “free” meant literally, or should it read broadly?

Putting weight behind that section of the act would mean a lot not just for bringing cases of Bud Light from Quebec into New Brunswick, but could also provide ammunition to challenge all sorts of province-specific regulations.

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